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Chicago Divorce Attorney, Illinois Family Law Lawyer, Child Custody, Divorce, Premaritial Agreements, Matrimonial Law - Schiller DuCanto & Fleck LLPTue, 24 Mar 2015 13:56:59 +0000en-UShourly1http://wordpress.org/?v=4.1.1The Illinois Supreme Court Rules that the “Equitable Adoption” and “Functional Parent” Theories Cannot be Raised By a Nonparent Seeking Custody of a Childhttp://www.familylawtopics.com/2015/03/illinois-supreme-court-rules-equitable-adoption-functional-parent-theories-raised-nonparent-seeking-custody-child/
http://www.familylawtopics.com/2015/03/illinois-supreme-court-rules-equitable-adoption-functional-parent-theories-raised-nonparent-seeking-custody-child/#commentsTue, 24 Mar 2015 13:56:59 +0000http://www.familylawtopics.com/?p=1503This past week, the Illinois Supreme Court delivered its long-awaited answer to a question which has been debated in the family law community for some time: does the doctrine of “equitable adoption” – first recognized by our Supreme Court in its 2013 decision in DeHart v. DeHart, 2013 IL 114137 – also apply in the […]

]]>This past week, the Illinois Supreme Court delivered its long-awaited answer to a question which has been debated in the family law community for some time: does the doctrine of “equitable adoption” – first recognized by our Supreme Court in its 2013 decision in DeHart v. DeHart, 2013 IL 114137 – also apply in the context of child custody actions? In In re Parentage of Scarlett Z. – D., 2015 IL 117904, the Court firmly closed the door on a nonparent raising an equitable adoption argument in a custody case by limiting its application to “the context of inheritance.” Further, the Court similarly foreclosed arguments that a “functional parent-child relationship” provides a nonparent with standing to seek custody of a child.

It has been nearly two years since the Illinois Supreme Court broke new ground by recognizing the “equitable adoption” doctrine for the first time. This doctrine allows a person who was accepted and treated as a natural or adopted child, and as to whom adoption was promised or contemplated but never legally achieved, to share in the inheritance of the promisor.

A brief review of the facts in the DeHart case reveals the legal and policy principles animating this doctrine. James DeHart brought an action against the executor of the estate of decedent Donald DeHart to contest Donald’s will. Donald had married James’ birth mother when James was about two years old, and agreed to adopt James, although the adoption would be kept secret “for the good of the family.” Instead, Donald held James out to be his biological son for his entire life. To achieve the adoption, Donald hired an attorney and received a purported birth certificate that named him as James’ father, a document upon which the family relied – as the Court put it – “to conduct the affairs of life.” It was not until James was 56 that he obtained his true birth certificate, and first learned that he was not Donald’s biological son. Although there was no documentation that a legal adoption had ever occurred, Donald continued to hold James out as his son and executed a will leaving him an inheritance. In the interim, James’ mother died, and Donald – at the age of 83 – married a woman 30 years his junior who allegedly exerted undue influence over him in causing his execution of a will stating he had no children and in which he left nothing to James.

When Donald died, the executor of his estate (Donald’s second wife) filed the second will with the court. James contested that will on a number of grounds, including that an equitable adoption had occurred and that Donald’s estate was therefore estopped from denying that James was an heir. The Illinois Supreme Court agreed with James and held that “in Illinois an equitable adoption theory should be recognized under the right circumstances.” Clearly, our Supreme Court believed that the situation presented in DeHart squarely fit this bill.

After DeHart, questions arose as to the scope of the Court’s ruling, and whether the “right circumstances” included expansion of the application of the equitable adoption theory to a child custody situation. The Supreme Court addressed and rejected this argument in Scarlett Z.-D.

In that case, Maria and Jim began living together in 1999 and shortly thereafter became engaged to be married. Maria then took a trip to Slovakia in 2003 to visit family, and she met Scarlett, who was a 3 ½-year-old orphan. Although the couple decided they wanted Scarlett to be part of their lives, Slovakian law prevented Jim from adopting her because he was neither a Slovakian national nor married to Maria. Thus, it was Maria who undertook a year-long process to adopt the child and she lived in Slovakia during that time. Jim, however, financially supported the process, traveled there five times, and participated in a psychological evaluation. In 2004, Maria adopted Scarlett under Slovakian law, and the three returned to Elmhurst, where Scarlett used the hyphenated form of Jim and Maria’s last names and referred to Jim as “daddy.” Jim’s name also appeared in Scarlett’s school records as her father, he paid all family expenses, and he established a $500,000 irrevocable trust for her. However, in 2008, Maria moved out of Jim’s home, taking Scarlett with her.

Jim filed an action in the Circuit Court of DuPage County, seeking a declaration of parentage, custody, visitation and child support as to Scarlett, based on several arguments, including a “functional parent” theory. Maria moved to dismiss Jim’s action on the basis that he lacked standing as a nonparent. The circuit court either dismissed or denied Jim’s claims, and that judgment was affirmed by the Appellate Court. Jim appealed to the Illinois Supreme Court, which used its supervisory authority to direct the Appellate Court to vacate its decision and reconsider the case in light of its then-recently-decided opinion in DeHart. A divided panel of the Appellate Court affirmed the rejection of Jim’s functional parent theories, but remanded the action for additional fact-finding to determine whether the doctrine of equitable adoption as first recognized in DeHart could apply. Maria then appealed to the Supreme Court.

The Illinois Supreme Court made it crystal-clear that the doctrine of equitable adoption, previously recognized in a will contest, does not apply to child custody proceedings. The Court clarified that the doctrine “is a probate concept to determine inheritance and does not apply to proceedings for parentage, custody and visitation.” As further support for this limitation, the Court underscored that this doctrine is merely an equitable remedy and “not intended or applied to create the legal relationship of parent and child, with all the legal consequences of such a relationship, nor is it meant to create a legal adoption.”

The Court also put the brakes on any further arguments based on a “functional parent” theory. Although Jim had conceded that he lacked statutory standing to commence a custody proceeding, he claimed he could gain standing in equity because he had a “functional parent-child relationship” with Scarlett, which had two aspects: a “psychological” or “de facto” parent relationship involving deep emotional bonds such that the child recognized him as a parent from whom she received daily nurture and guidance, as well as an in loco parentis relationship whereby Jim intentionally placed himself in a parental status. Although the Court engaged in a lengthy discussion regarding these novel theories, it concluded that because they involved fundamental matters of public policy, “legislative and not judicial solutions are preferable.”

]]>http://www.familylawtopics.com/2015/03/illinois-supreme-court-rules-equitable-adoption-functional-parent-theories-raised-nonparent-seeking-custody-child/feed/0Governor Rauner Proposes Changes to Illinois Pension Plans in Budget Addresshttp://www.familylawtopics.com/2015/02/governor-rauner-proposes-changes-illinois-pension-plans-budget-address/
http://www.familylawtopics.com/2015/02/governor-rauner-proposes-changes-illinois-pension-plans-budget-address/#commentsWed, 18 Feb 2015 20:12:40 +0000http://www.familylawtopics.com/?p=1497Governor Rauner proposes to cut billions of dollars from the State of Illinois’ next fiscal year’s budget. The fiscal year in Illinois runs from July 1 to June 30th. Approximately half of the funds cut are proposed to be due to cuts to Illinois Pension Plans. The proposed budget cuts would have a significant impact […]

]]>Governor Rauner proposes to cut billions of dollars from the State of Illinois’ next fiscal year’s budget. The fiscal year in Illinois runs from July 1 to June 30th. Approximately half of the funds cut are proposed to be due to cuts to Illinois Pension Plans. The proposed budget cuts would have a significant impact on divorced or divorcing parties where a State Pension constitutes a significant asset in a prior divorce settlement or their current marital estate. The budget cuts could significantly impact the actuarial value of these pensions.

The Governor proposes to cut funds due to pension plans is by converting all of the state employees (except for state police and firefighters) to “Tier 2” employees as of July 1, 2015. Tier 2 previously applied only to employees hired after December 31, 2010. All persons hired before January 1, 2011 were in Tier 1.

The governor estimates his changes will cause the amount of the pension contribution needed for the next fiscal year to be $2.2 billion less.

The Tier 2 plan is a less rich plan because benefits are calculated differently. The major differences involve a change to the final average compensation calculation that uses the highest 96 months of the last 120 versus the Tier one calculation that uses the highest 48 months of the last 120. The cost of living increase is also limited to 3% or half of the consumer price index increase. There is also a cap on the maximum salary amount that can be used for the final average compensation calculation. Finally, Tier 2 employees generally must work until they are older to receive benefits.

The Governor’s plan also states that benefits which were earned will be frozen on July 1st. Employees will also be given the option to take a lump sum pension buyout for those who want to convert to a 401(k) plan with some form of employer matching contribution. Another change would be to eliminate state funding for the Chicago Public Schools’ Pension Funds.

We do not know what benefits would be considered frozen since state pension plans pay benefits based upon years of service and final average compensation. If everyone is to be moved to the Tier 2 plan, I’m not sure what benefits from the Tier 1 plan would be frozen and need this to be explained further.

We would also anticipate that there would have to be some limit on lump sum pension buyouts because if everyone wanted the value of their pension in a lump sum today, there would not be enough money in the plans to pay them since the pension plans are approximately 36% funded.

All of the Governors’ proposals must first be made law before effective. The legislature can act on the governor’s proposals, ignore them, or pass whatever other budget provisions they choose. The Governor can then veto their budget. The legislature can attempt to override the veto. On it goes until some compromise is reached.

Even if the Governors’ proposed changes to Illinois Pensions are enacted by the legislature, it is entirely possible that those changes would be found unconstitutional, just like the last Pension Reform Act [Public Act 98-0599 (Senate Bill 1)] which was signed into law on December 3, 2013 and was found unconstitutional on November 21, 2014 by Sangamon County Circuit Court Judge John Belz. The Illinois Supreme Court is expected to rule on the constitutionality of the Pension Reform Act in 2015.

Nothing specifically proposed by Governor Rauner limits the benefits that a former spouse would be entitled to. Of course, if the employee’s benefits are reduced, the former spouse’s share would also be reduced since most people are granted a percentage of the marital portion of the benefit.

Illinois has a lot of issues with pension funding and time will tell how it is resolved.

]]>http://www.familylawtopics.com/2015/02/governor-rauner-proposes-changes-illinois-pension-plans-budget-address/feed/0Infidelityhttp://www.familylawtopics.com/2015/02/infidelity/
http://www.familylawtopics.com/2015/02/infidelity/#commentsThu, 12 Feb 2015 17:25:44 +0000http://www.familylawtopics.com/?p=1495Marital infidelity is common and much has been written on the subject. Recently, the Wall Street Journal published an article entitled “The Signs Before An Affair”, Wall Street Journal, January 27, 2015, page D1. While not necessarily scientific, the “signs” include: Gender; Certain ages being more prone to cheating; History of past infidelity; Dissatisfaction with […]

]]>Marital infidelity is common and much has been written on the subject. Recently, the Wall Street Journal published an article entitled “The Signs Before An Affair”, Wall Street Journal, January 27, 2015, page D1. While not necessarily scientific, the “signs” include:

Gender;

Certain ages being more prone to cheating;

History of past infidelity;

Dissatisfaction with the current relationship;

Exposure to potential partners at work;

Thrill seeking or narcissistic personal traits.

Moreover, statistics suggest that sometime during their marriages, 21% of men and 15% of women are involved at some time in an extramarital affair. See National Opinion Research Center’s General Social Survey. Other statistics are even higher.

Naturally, the question arises as to what, if any, effect an affair has on a soon-to-be-filed or pending divorce case? In many cases, the infidelity is what triggers the filing of a case. There are differences of opinion as to whether the affair is the cause of the break-up or a symptom of an already broken marriage or some combination. One thing that is certain, however, is that on an emotional level, the infidelity increases anxiety, anger, fear, and resentment, often to levels that make rational decision making difficult if not impossible.

While emotionally infidelity has a huge impact on people’s lives, legally, only a few consequences flow:

1. The act of the extramarital affair may create grounds for divorce, i.e. adultery. However, since marital misconduct is no longer a relevant consideration in Illinois with respect to division of property, awards of child support and alimony, or custody determinations, this impact is no longer meaningful;

2. The money spent on the affair may give rise to a claim for dissipation, i.e. the expenditure of marital funds on a non-marital purpose during a time when the marriage is going through an irretrievable breakdown. While this certainly has a more meaningful impact, seeking recovery for the dollars spent on a non-marital purpose, ie: flowers, hotel rooms, jewelry or even vacations, often is not cost effective. While these dollars should not necessarily be ignored, in many cases, the time, effort and fees spent to recover these kinds of expenditures may outweigh the recovery itself.

Regardless of the legal ramifications, in most situations of infidelity, the notion that he or she can “get away with it” is unacceptable to the cheater’s spouse. Starting or continuing an extramarital affair when a divorce case is pending may likely significantly raise the level of emotion, push parties to more extreme positions, and frequently create more work for paralegals, forensic accountants, and lawyers, ultimately causing the divorce to be more expensive and not necessarily providing a cost/benefit to the client. Having said that, people often let their personal emotions drive the course of a divorce case. Therefore, when a party to a divorce wants to push for retribution or punishment, it is up to the individual attorney to educate their client on the legal consequences of the infidelity and help their client determine the best course of action for their overall case, and not merely as a reaction to the infidelity.

When meeting with clients who are in the process of experiencing the after-shock of learning about their spouses infidelity, I often advise them that time is a great healer. I suggest that they slow down and not rush to make a game plan, but to take their time identifying their own long term goals so that the short term disappointments are not the driving force and they can focus on the best end result.

]]>http://www.familylawtopics.com/2015/02/infidelity/feed/0Why is Alienation Difficult to Identify?http://www.familylawtopics.com/2015/02/alienation-difficult-identify/
http://www.familylawtopics.com/2015/02/alienation-difficult-identify/#commentsMon, 09 Feb 2015 14:26:34 +0000http://www.familylawtopics.com/?p=1492In contested custody cases, some divorcing parents claim “Parental Alienation Syndrome”. It is not surprising that they are often using the term incorrectly, especially since psychologists and courts alike cannot agree on the meaning of this term. While the syndrome was identified over twenty years ago, it is still the subject of current dispute because, […]

]]>In contested custody cases, some divorcing parents claim “Parental Alienation Syndrome”. It is not surprising that they are often using the term incorrectly, especially since psychologists and courts alike cannot agree on the meaning of this term. While the syndrome was identified over twenty years ago, it is still the subject of current dispute because, while easy to define, it is not at all easy to accurately identify.

At its core, parental alienation is a campaign of denigration by one parent against the other parent which engages the children and destroys familial bonds. In the cases where this claim is being made, it is usually when a parent believes that he or she is being targeted either because the other parent treats them poorly in front of the children or because a child develops anger or indifference towards them. In and of itself, however, these behaviors do not prove that there is in fact parental alienation.

In a contentious divorce, it is easy to want to blame the other parent for child related problems. In reality, it is the rare situation when those problems rise to the level of parental alienation. Before it can be concluded that parents have been alienated, there are multiple other factors that need to be ruled out as an explanation for the children’s behavior. Oftentimes it is difficult to distinguish between normal discord from the divorce, influences on the children from outside the house, and the unintended effect of the targeted parent’s own behavior on their child.

Given the complexity between these outside factors, as well as tell-tale signs of alienation, the signs can be more easily evaluated and identified by an unbiased, third-party who speaks to and observes the family as a whole. Consequently, if you are involved in a case where you and/or your client suspect alienation is taking place, it is important to engage a mental health professional either for the benefit of the family directly or, if litigation has started, the benefit of the court. If the discord occurring in the household is divorce related, the mental health professional can aid the children in working through their feelings and providing them necessary coping skills, as well as help the parents learn to behave in a less detrimental manner. If you involve a mental health professional to aid in the litigation, this expert can not only identify whether or not alienation has occurred, but make recommendations to the court about how best to address these issues. Therefore, if alienation is occurring, an experienced mental health professional should be engaged both to assess and identify the severity of the alienation and to help either the family or the court to develop a plan to stop the alienation and lessen or reverse the effect on the children.

]]>http://www.familylawtopics.com/2015/02/alienation-difficult-identify/feed/0Imputing Incomehttp://www.familylawtopics.com/2015/02/imputing-income/
http://www.familylawtopics.com/2015/02/imputing-income/#commentsMon, 02 Feb 2015 15:34:53 +0000http://www.familylawtopics.com/?p=1490Because of the economy over the past few years, many of my clients have changed jobs and even careers. While an employment change sometimes influences the outcome of child custody or visitation, it almost always impacts the calculation of support. One reason behind this is Illinois law on imputing income. Imputing income simply means that […]

]]>Because of the economy over the past few years, many of my clients have changed jobs and even careers. While an employment change sometimes influences the outcome of child custody or visitation, it almost always impacts the calculation of support. One reason behind this is Illinois law on imputing income.

Imputing income simply means that a court can treat a party as having more income than he or she actually earns at the time, which is often used to ensure that a party is not motivated to stay out of work in order to avoid paying support. However, under the right circumstances, a court can sometimes impute additional income even when a party is employed.

Before it will consider ordering imputed income to an employed individual, however, the court must first determine that the individual is either attempting to evade a support obligation or he or she has unreasonably failed to take advantage of an employment opportunity. With respect to the latter, an obvious example of someone failing to take advantage of an employment opportunity is when an individual turns down a viable job offer. A second example would be a person who switches careers and accepts a job for significantly less income for no other reason than personal desire.

Once a court determines that income should be imputed, the chore then becomes- how much? In most circumstances, the amount of income which would be imputed is equal to the amount the individual is capable of earning given his or her unique set of skills. One indicator of what a person is capable of earning is that person’s past earnings history. Another indicator may be the typical income level for a career that the person is capable of having. Based on these indicators, if an employed spouse changes careers in bad faith, through income imputation, that spouse may be ordered to pay support at a much higher level than he or she expected.

When talking with a client who is going through a career change or recently lost a job, or when talking with a client whose spouse is going through these same changes, take the time to inquire as to the totality of the circumstances surrounding the individual situations. If it is your own client going through these changes, make sure he or she is aware of all of the variables that they should be considering when embarking on their next job. If it is your client’s spouse who is experiencing these changes, take the time to investigate their efforts in seeking new employment and making sure that they are sincerely searching for an opportunity that benefits the entire family.

]]>http://www.familylawtopics.com/2015/02/imputing-income/feed/0Private Conversations Protected Under New Illinois Eavesdropping Lawhttp://www.familylawtopics.com/2015/01/private-conversations-protected-new-illinois-eavesdropping-law/
http://www.familylawtopics.com/2015/01/private-conversations-protected-new-illinois-eavesdropping-law/#commentsTue, 06 Jan 2015 21:37:18 +0000http://www.familylawtopics.com/?p=1486On December 30, 2014, Gov. Quinn approved new rules regarding how private conversations can be recorded following the Illinois Supreme Court’s decisions this past March in People v. Clark, 2014 IL 115776 and in People v. Melongo, 2014 IL 114852, which struck down Illinois’ prior eavesdropping law for being overly-broad. Illinois’ previous eavesdropping law was […]

]]>On December 30, 2014, Gov. Quinn approved new rules regarding how private conversations can be recorded following the Illinois Supreme Court’s decisions this past March in People v. Clark, 2014 IL 115776 and in People v. Melongo, 2014 IL 114852, which struck down Illinois’ prior eavesdropping law for being overly-broad. Illinois’ previous eavesdropping law was among the strictest in the nation, making it illegal to record anyone, even in public, without their permission.

The new law now draws a distinction between a “private” conversation and other public communications, and provides that a person commits eavesdropping when he or she knowingly and intentionally:

1) uses an eavesdropping device, in a “surreptitious manner,” for the purpose of overhearing, transmitting, or recording all or part of a “private” conversation to which he or she is not a party unless he or she does so with the consent of all the parties to the conversation;

2) uses an eavesdropping device, in a “surreptitious manner,” for the purpose of transmitting or recording all or any part of any “private” conversation to which he or she is a party unless he or she does so with the consent of all of the parties to the private conversation; or

3) intercepts, records, or transcribes, in a “surreptitious manner,” any “private” electronic communication to which he or she is not a party unless he or she does so with the consent of all other parties to the private electronic communication.

The statute defines “surreptitious manner” as “obtained or made by stealth or deception, or executed through secrecy or concealment.”

Thus, the new eavesdropping law requires that all parties involved in a “private” conversation give their permission to be recorded. The new statute defines a “private” conversation as an oral communication between two or more people in which the parties have a “reasonable expectation” that the discussion will remain private. The statute provides no definition of what entails a “reasonable expectation” of privacy, thereby leaving the courts to determine this on a case-by-case basis.

This means, for example, that it would likely be illegal for one party to secretly record another party over the phone or in a home setting. It would be legal, however, to record that same conversation if it were taking place loudly on the street in public. In other words, if it happens in public, without a reasonable expectation of privacy, it can be recorded absent consent of the other party. The bottom-line is that everyone in a “private” conversation must consent to the recording.

The new eavesdropping law also prohibits the use or disclosure of any information which a party knows or reasonably should know was obtained from a “private” conversation or “private” electronic communication in violation of the provisions in the statute, unless he or she does so with the consent of all of the parties. Thus, the new law also appears to make it a crime for someone to forward an email or other electronic communication (i.e. a text message) that the sender intended to be private without that party’s consent. See §14-2(a)(5).

]]>http://www.familylawtopics.com/2015/01/private-conversations-protected-new-illinois-eavesdropping-law/feed/0Chicago Works to Improve Response to Domestic Violence Caseshttp://www.familylawtopics.com/2014/12/chicago-works-improve-response-domestic-violence-cases/
http://www.familylawtopics.com/2014/12/chicago-works-improve-response-domestic-violence-cases/#commentsFri, 19 Dec 2014 15:06:20 +0000http://www.familylawtopics.com/?p=1483The spotlight on efforts to combat domestic violence continues to shine on groundbreaking changes in policy and procedure developed by a Chicago citywide task force formed last year by Mayor Rahm Emanuel. The task force – which is a collaboration between the Mayor’s office, the Chicago Police Department (CPD), the office of the Cook County […]

]]>The spotlight on efforts to combat domestic violence continues to shine on groundbreaking changes in policy and procedure developed by a Chicago citywide task force formed last year by Mayor Rahm Emanuel. The task force – which is a collaboration between the Mayor’s office, the Chicago Police Department (CPD), the office of the Cook County State’s Attorney, the city Department of Family and Support Services and the Chicago Metropolitan Battered Women’s Network – has formulated new training protocols for first-responding officers to increase sensitivity to the psychological and emotional aspects of domestic situations, enhance coordination between the police, the prosecutors and service providers to keep victims safe, and to improve evidence collection techniques to assist in prosecution and conviction of offenders.

Against a backdrop in which the CPD annually responds to more than 200,000 domestic- related calls, Mayor Emanuel explained the need for this coordinated response by pointing to the 31 domestic violence-related murders in Chicago in 2013, and the fact that many of these victims contacted the police at least once before they were killed. Believing that “[i]f we handled it right the first time, we could [have] prevent[ed]” these deaths, Emanuel charged the group with improving the system. To that end, focus was placed on the pivotal role police officers play as the first contact abused women have with the justice system when they decide to seek help and leave their abusers.

As part of its fact-finding process, the task force heard disturbing stories that included women being interviewed by police in the presence of their alleged abusers, and then being left in that household if no arrest was made. The problems also reached into the legal system, including that prosecutors were routinely handed incomplete police reports lacking necessary information making it extremely difficult to pursue domestic violence cases if the victim declined to testify.

In response, the task force developed a set of specific goals and implemented new strategies for first responders, service providers and prosecutors, including:

Identification of households at an elevated risk for injury;

Elevation of the law enforcement response to those households;

Proactive connection of high-risk victims to services, including counseling, shelters, and legal advocacy/representation; and

Prioritizing higher-risk offenders for prosecution.

These new approaches have been successfully implemented by the CPD in a pilot program which has been running in the City’s 14th District on the North Side. Officers responding to domestic violence calls now use newly-developed assessment forms to determine whether a victim is at elevated risk for injury as a result of repeated and increasingly serious incidents of domestic violence. The officers ask the victim a series of questions, including whether the alleged abuser has threatened to use a weapon, threatened to kill the victim, or prevented her from leaving the house, seeking help or calling the police.

If the officers decide that the situation is high risk, they then refer the household to a special unit of the State’s Attorney’s office, which targets prosecutions against certain defendants. The household will also receive priority for immediate follow-up investigations, which may include well-being checks. In addition, the officers ensure that the victims are connected to resources, such as social service agencies that offer counseling, shelter and other help to ensure the victim’s safety.

Finally, new procedures for evidence collection are targeted to improve prosecution of these matters. It is not unusual for domestic violence victims to change their minds about pressing charges between the time of the incident and trial. Therefore, the quality of the evidence collected during the initial contact is critical. Improved techniques include the use of evidence technicians to photographically document injuries and requiring officers to complete detailed reports of statements made by the alleged abuser and the victim.

The results of the pilot program are encouraging, as they reveal that response time to domestic calls has decreased, while the collection of evidence, connection of victims to services and arrests have all increased. Specifically, arrests in the pilot district increased by 53% when compared with the same period in 2013, even though incidents of domestic violence decreased by about 9%.

By the end of this year, it is expected that the pilot program will be expanded to include the South Side’s 3rd District. By all accounts, further positive results will lead to the use of these procedures city-wide, providing concrete steps to stop the cycle of domestic violence.

]]>http://www.familylawtopics.com/2014/12/chicago-works-improve-response-domestic-violence-cases/feed/0Illinois Pension Reform Found Unconstitutionalhttp://www.familylawtopics.com/2014/12/illinois-pension-reform-found-unconstitutional/
http://www.familylawtopics.com/2014/12/illinois-pension-reform-found-unconstitutional/#commentsWed, 10 Dec 2014 14:49:16 +0000http://www.familylawtopics.com/?p=1478There appears to be good news for state employees. On Friday, November 21, 2014, Sangamon County Circuit Court Judge John Belz found that “without question” the pension reform law is unconstitutional since the Illinois Constitution contains a provision that a public worker pension cannot be “diminished or impaired”. In reaching his decision, Judge Belz stated […]

]]>There appears to be good news for state employees. On Friday, November 21, 2014, Sangamon County Circuit Court Judge John Belz found that “without question” the pension reform law is unconstitutional since the Illinois Constitution contains a provision that a public worker pension cannot be “diminished or impaired”. In reaching his decision, Judge Belz stated that “the state of Illinois made a constitutionally protected promise to its employees concerning their pension benefits… Under established and uncontroverted Illinois law, the state of Illinois cannot break this promise.”

The pension reforms found to be unconstitutional include reducing and suspending cost-of-living increases for pensions, raising retirement ages and limiting salaries on which pensions are based. Accordingly, per this recent decision, the pension benefits of individuals in the Teachers Retirement System (“TRS”), State Universities Retirement System of Illinois (“SURS”) and State Employees Retirement System of Illinois (“SERS”), will not be affected and the benefits they are presently earning will not be changed. While pension recipients may feel a sigh of relief, they should be aware that this may not be the final word since Illinois Attorney General Lisa Madigan has promised to appeal to the Illinois Supreme Court.

In divorce, an individual that has benefits in a state pension plan can divide those benefits with their former spouse via a Qualified Illinois Domestic Relations Order (“QILDRO”) in any of the following ways:

1) Percentage of total benefit paid;

2) Marital percentage of total benefit paid; or

3) A set dollar amount from the total benefit paid.

None of the proposed reforms currently change benefits that a state employee would be able to share with a spouse pursuant to a divorce. However, if in the future the reform act is ever found to be constitutional and the employee’s benefits are reduced, their former spouse’s share of the benefits would also be affected. Accordingly, in light of possible future reforms being approved, in finalizing a divorce settlement, the parties may want to be sure that they are both on the same page as to which way to divide the pension benefits.

]]>http://www.familylawtopics.com/2014/12/illinois-pension-reform-found-unconstitutional/feed/0Save for Retirementhttp://www.familylawtopics.com/2014/11/save-retirement/
http://www.familylawtopics.com/2014/11/save-retirement/#commentsMon, 24 Nov 2014 14:55:01 +0000http://www.familylawtopics.com/?p=1474November is a delightful month when we begin the holiday season that everyone is aware of (ie: Thanksgiving, Chanukah and Christmas). In October, however, we celebrated many holidays and events, some of which not everyone is aware of, such as Columbus Day, Halloween, Bosses Day, Sweetest Day, Domestic Violence Awareness Month, Breast Cancer Awareness Month, […]

]]>November is a delightful month when we begin the holiday season that everyone is aware of (ie: Thanksgiving, Chanukah and Christmas). In October, however, we celebrated many holidays and events, some of which not everyone is aware of, such as Columbus Day, Halloween, Bosses Day, Sweetest Day, Domestic Violence Awareness Month, Breast Cancer Awareness Month, Oktoberfest National Pizza Month and National Save for Retirement Week which was October 19th – 25th, 2014.

People going through a divorce sometimes have a hard time thinking about saving for retirement due to the extra costs of setting up a second household and the costs of the divorce itself. However, as you are working through the financial issues in your case, it is important to look to your future and make sure that the retirement assets are divided so that both parties have funds tucked away to use for retirement, especially if you are older when you divorce. Some people going through a divorce are so fixated on keeping their home, that they are tempted to trade off retirement assets. It is important to keep in mind that while real estate may appreciate or depreciate in value over the years, and often requires investment of funds for maintenance and upkeep, a retirement plan will continue to obtain market gains (or losses) and compound interest returns. They are also then in a form that can be spent tax deferred at retirement.

If one party does not have any retirement plan in their own name, and their spouse does, it is especially important for them to obtain a share of their spouse’s retirement plans. In all likelihood, they are the party who may also have more difficulty after the divorce in acquiring additional retirement assets. For instance, the party who has not worked during the marriage or is just getting their career back on track likely will not have the same ability to earn retirement assets as their former spouse. This is something that must be considered in the overall property division. Although the specific way a retirement plan can be divided in a divorce depends upon the type of retirement plan that is involved (ie: ERISA plans are divided via a Qualified Domestic Relations Order (“QDRO”) and state and local government plans are divided via a Qualified Illinois Domestic Relations Order (“QILDRO”)), all of these plans can be transferred tax free incident to a divorce it and it is important both that the proper type of document be prepared and that the document correctly transfers the retirement assets. Otherwise, the spouse who is to receive a portion of their spouse’s benefits may not get them.

Please do not let a divorce be the reason you either stop, or do not, save for retirement. Rather, use the divorce as an opportunity to have to save for retirement. Your attorney and/or financial advisor can aid you in dividing the estate so that you maximize your ability to save for retirement.

]]>http://www.familylawtopics.com/2014/11/save-retirement/feed/0Billionaires Divorcing – Is Too Much Never Enough?http://www.familylawtopics.com/2014/11/billionaires-divorcing-much-never-enough/
http://www.familylawtopics.com/2014/11/billionaires-divorcing-much-never-enough/#commentsWed, 19 Nov 2014 20:35:17 +0000http://www.familylawtopics.com/?p=1469How much money do you need to live? Or, is the question really, how much money should you be entitled to receive, regardless of what it costs you to live? That is the practical question presented when billionaires divorce, as most recently illustrated by the divorce of Oklahoma energy magnate Harold Hamm and his ex-wife […]

]]>How much money do you need to live? Or, is the question really, how much money should you be entitled to receive, regardless of what it costs you to live? That is the practical question presented when billionaires divorce, as most recently illustrated by the divorce of Oklahoma energy magnate Harold Hamm and his ex-wife Sue Ann.

In that case, it appears that a divorce court awarded Harold about $2 billion and Sue Ann received $995 million, which is approximately 33% of the alleged marital estate. Sue Ann is appealing this ruling, claiming that the estate is really worth $18 billion and therefore, the property award she received is less than 6% of their net worth.

The legal arguments in this case no doubt will focus on the proper valuation of the marital estate, the parties’ 20 year marriage, how much time and effort Sue Ann devoted to helping grow Harold’s energy businesses and whether or not there is a non-marital claim. Presumably, Sue Ann was there in the early days of Harold’s company, she may well have been instrumental in helping the company become what it is today, either directly by her own efforts or indirectly by acting as an advisor to Harold or by running the household and raising the children.

It is difficult to view these legal issues in isolation from the practical and common sense reality of the staggering amount of money involved. If Sue Ann is correct, and the estate is really worth closer to $18 billion, why should she receive only 10%? If Sue Ann is wrong, and the estate is only worth approximately $3 billion, why should she have received only 33%? In absolute terms, Sue Ann received $995 million dollars. Regardless of the percentages, we all know that no one really needs that amount of money to live.

When appeals courts decide the cases before them, they also have an eye on the so-called “big picture,” meaning how their decision in one case will affect decisions in cases yet to come. The task of appellate lawyers is to review the facts and apply the law to them. Legally, the case is not really about how much money Harold and Sue Ann have, but rather, it is about each of their respective contributions to the marriage and, as a result, how Harold and Sue Ann’s estate should be divided. In this case, it certainly will be interesting to see how the appellate court values and allocates the estate.